{"id":202436,"date":"2011-04-27T00:00:00","date_gmt":"2011-04-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/paschim-vs-recovery-on-27-april-2011"},"modified":"2016-09-16T08:50:13","modified_gmt":"2016-09-16T03:20:13","slug":"paschim-vs-recovery-on-27-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/paschim-vs-recovery-on-27-april-2011","title":{"rendered":"Paschim vs Recovery on 27 April, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Paschim vs Recovery on 27 April, 2011<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/14969\/2010\t 18\/ 18\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 14969 of 2010\n \n\n \n \n=========================================================\n\n \n\nPASCHIM\nGUJARAT VIJ CO.LTD. FORMERLY G.E.B & 1 - Petitioner(s)\n \n\nVersus\n \n\nRECOVERY\nOFFICER AND ASSISTANT PROVIDENT FUND COMMISSIONER & 1 -\nRespondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMr\nKB Trivedi, Senior Advocate with MS LILU K BHAYA\nfor\nPetitioner(s) : 1 - 2. \nMr. NIRAL R MEHTA for Respondent(s) : 1 -\n2. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 27\/04\/2011 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Heard
\n\tlearned Senior Advocate Mr. KB Trivedi with learned Advocate Ms.
\n\tLilu K. Bhaya for petitioners and learned Advocate Mr. Niral R.
\n\tMehta for respondents.\n<\/p>\n
Considering
\n\tsubmissions made by both learned advocates, question raised in this
\n\tpetition would require examination. Hence, Rule. Service of notice
\n\tof rule is waived by learned Advocate Mr. Niral R. Mehta appearing
\n\tfor respondents PF Authority. With consent of both learned
\n\tadvocates, matter is taken up for final hearing today.\n<\/p>\n
By
\n\tfiling this petition, petitioner – Paschim Gujarat Vij Company
\n\tLimited, (Government of Gujarat Company) (Formerly Gujarat
\n\tElectricity Board) having its registered \/ Head Office at Race
\n\tCourse, Vadodara (Gujarat) and Circle Office at Porbandar has
\n\tchallenged order passed by respondent PF Authority as per prayers
\n\tmade in paragraph 21(A),(B) and (C) which are quoted as under:\n<\/p>\n
“21(A)\tTo
\n\tissue a writ of mandamus or a writ in the nature of mandamus or any
\n\tother appropriate writ, order or direction which the Hon’ble Court
\n\tmay deem fit, just and proper quashing and setting aside the
\n\tjudgment and order dated 8.9.2010 passed by Learned Employees’
\n\tProvident Fund Appellate Tribunal, New Delhi in Appeal NO.
\n\tATA\/830(5)\/2004 and further be pleased to allow the said appeal and
\n\tquash and set aside the order dated 30.9.2004 passed by the
\n\trespondent no.2 for the reasons stated in the Memo of Petition.\n<\/p>\n
(B)\tTo
\n\tissue a writ of mandamus or a writ in the nature of mandamus or any
\n\tother appropriate writ, order or direction which the Hon’ble Court
\n\tmay deem fit, just and proper quashing and setting aside the order
\n\tdated 24.9.2010 passed by the respondent no.1 under Sec. 8-F of the
\n\tAct attaching the Bank Account of the petitioner and directing the
\n\tBank to pay Rs.81,11,245\/- by way of Demand Draft from the account
\n\tof the petitioner without serving the petitioner copy of the
\n\tjudgment rejecting the appeal or notice calling upon the petitioner
\n\tto pay the amount for the reasons stated in the Memo of Petition.\n<\/p>\n
(C)\tPending
\n\tadmission, hearing and final disposal of the above Special Civil
\n\tApplication to stay the execution, implementation and operation of
\n\tthe order dated 24.9.2010 issued by the respondent No.1 on the State
\n\tBank of India Manek Chowk Branch,Porbandar and restrain the
\n\trespondents, their agents and servants from recovering amount of
\n\tRs.81,11,245.00 pursuant to attachment order dated 24.9.2010
\n\tdirecting the State Bank of India Manek Chowk Branch,Porbandar to
\n\tpay an amount of Rs.81,11,245.00 for the reasons stated in the Memo
\n\tof Petition.”\n<\/p>\n
In
\n\tthis matter, affidavit in reply is filed by respondents page 101.
\n\tDuring pendency of petition, one Draft Amendment has been placed on
\n\trecord which is dated 9th December, 2010. It has been
\n\tallowed by this court and accordingly, amendment is made in this
\n\tpetition by petitioner in view of order passed by this court dated
\n\t14th December, 2010. Para 15(A),(B),(C),(D) (i) to (vi)
\n\tand (E) have been added to petition pursuant to order of this court
\n\tdated 14.12.2010.\n<\/p>\n
Respondents\n<\/p>\n
\t– PF Authority has passed order in proceedings under section
\n\t7A of Employees’ Provident Fund and Miscellaneous Provisions Act,
\n\t1952. Petitioner is having PF Code No. GJ\/920-G. Respondent PF
\n\tAuthority passed aforesaid order under section 7-A on 30th
\n\tSeptember, 2004 and directed present petitioner to pay due amount
\n\twhile determining dues payable by petitioner establishment under PF
\n\tAct and Schemes framed thereunder on basis of information available
\n\ton record as laid before Provident Fund Authority for period under
\n\treference from 2000 to 2004. Total amount comes to Rs.59,84,367.00
\n\twith interest under section 7-Q to be paid by petitioner which
\n\tamount comes to Rs.17,70,769.00. Thereafter, order passed by PF
\n\tAuthority was challenged by petitioner before Employees Provident
\n\tFund Appellant Tribunal, New Delhi by filing Appeal ATA No. 830(5)04
\n\twherein appellate tribunal has decided appeal on 8.9.2010 and appeal
\n\tpreferred by petitioner has been dismissed. Then, respondent PF
\n\tAuthority has issued order dated 24th September, 2010
\n\twhile exercising powers under section 8F of Employees’ Provident
\n\tFunds and Miscellaneous Provisions Act and addressed  a letter to
\n\tState Bank of India (earlier State Bank of Saurashtra) Porbandar to
\n\tremit amount mentioned in order total comes to Rs.81,11,245.00. It
\n\tis submitted by learned Senior Advocate Mr. KB Trivedi that in view
\n\tof order passed by PF Authority under section 8F of Act which is
\n\tdated 24.9.2010, that amount is already transferred in account of
\n\trespondent PF Department. However, learned Advocate Mr. Niral R.
\n\tMehta appearing for respondents PF Department is not having any
\n\tclear instructions whether such amount as referred to above has been
\n\ttransferred to account of respondent PF Department or not.\n<\/p>\n
When
\n\tmatter was examined by Competent Authority under section 7A of PF
\n\tAct, representative from petitioner appeared before competent
\n\tauthority and submitted proof of having been submitted statutory
\n\treturns. Establishment has failed to produce pay roll, muster roll,
\n\tvoucher etc.  in respect of contractor engaged by establishment
\n\tdespite adjournments granted by competent authority in proceedings
\n\tunder sec. 7A of Act. Before competent authority, an affidavit of
\n\tShri BA Parmar, (SE) was submitted by petitioner wherein it was
\n\tstated that records for period from 16.11.1995 to 31.3.2000 are not
\n\tavailable. However, establishment produced Form No. 26-C from
\n\t1.4.2000 to 31.1.2004 along with list of 30 contractors which are
\n\tself employed wherein employer himself is doing work for which
\n\taffidavits are produced on record before competent authority. List
\n\tof 410 contracts with details of contract, contract amount paid,
\n\tlabour charges invoiced therein etc. were submitted by petitioner
\n\testablishment before competent authority, however, petitioner
\n\testablishment failed to produce pay roll, muster roll, names of
\n\tlabourers etc.  and have stated to have paid wages at rate of 16 per
\n\tcent of contract amount. This aspect was examined by competent
\n\tauthority and it was considered that 16 per cent wages is not
\n\tconsidered to be justified and same has not been acceptable and
\n\ttherefore, 20 per cent wages are considered on contract amount paid
\n\tand find out that employer in relation to  establishment is liable
\n\tto remit dues payable under the Act and Schemes framed thereunder
\n\tfor period under reference. Dues for period from 11.1995 to 02.2000
\n\tcould not be determined by competent authority as record is not
\n\tavailable with establishment for reason of natural calamity in shape
\n\tof cyclone and earthquake as constrained in affidavit dated
\n\t3.8.2004. However, in event if subsequently any fact is discovered
\n\tto contrary of affidavit or any claim is advanced by contract labour
\n\tfor period upto  February, 2000 from November, 1995, establishment
\n\tshall be liable to make payment on account of provident fund.\n<\/p>\n
Appellate
\n\tTribunal has considered order passed by competent authority under
\n\tsection 7A of PF Act and only considering definition of employee
\n\tunder section 2(f) of Act, came to conclusion that it is duty of
\n\tprincipal employer to prepare list of employees engaged by him as
\n\tper para 36 A&B. Persons engaged by contractor were working for
\n\tappellant means present petitioner establishment and, therefore,
\n\tpresent petitioner being principal employer, having primary
\n\tresponsibility  for payment of contribution and to get necessary
\n\tdetails of workmen employed by contractor. Petitioner had engaged
\n\tcontractor to execute work, then, it is duty of petitioner to get
\n\tnecessary details of workmen employed by contractors at commencement
\n\tof contract since primary responsibility for payment of contribution
\n\tis on principal employer. It was observed that it was also duty of
\n\tpetitioner company to get temporary identity certificate issued to
\n\tworkmen and to pay the contribution. It was also observed that since
\n\tpetitioner failed to do so, it cannot be heard to say that workmen
\n\tare unidentifiable. It was observed that in this case, appellant has
\n\tnot prepared any list nor supplied same to competent authority,
\n\tso,at this stage, he is not permitted to say that workmen are not
\n\tidentifiable. Therefore, appellate tribunal has rejected appeal
\n\tpreferred by petitioner and confirmed order passed by competent
\n\tauthority under section 7A of PF Act.\n<\/p>\n
In
\n\tlight of this back ground, contention which has been raised by
\n\tpetitioner before this Court in para 15(A) (B),(C),(D) (i) to (vi)
\n\tand 15(E) in petition amended as per this Court’s order dated
\n\t14.12.2010 are quoted as under:\n<\/p>\n
“15(A)
\n\tPetitioners have challenged the order dated 8.9.2010 of the
\n\tappellate authority which in fact confirms the order of the
\n\tAssistant Provident Fund Commissioner dated 30.9.2004. It is
\n\tsubmitted that the said order is passed on conjectures and surmises
\n\tsince the same is rendered in utter disregard of the documents on
\n\trecord. Petitioners further submit that the liability sought to be
\n\timposed on the petitioner can never be fastened as services of all
\n\tthose people were hired on principal to principal basis and not on
\n\tcontractual basis. Therefore, the alleged liability totalling to the
\n\ttune of Rs.81,11,245\/- can never be fastened
\n\ton the petitioner company.\n<\/p>\n
15(B)\tPetitioners
\n\tsubmit that it is pertinent to note that in this case, neither the
\n\talleged contractors nor their employees are available. It is
\n\tpertinent to note that even in such cases where the persons are
\n\teither not found to be working with the alleged contractors or not
\n\tworking in the capacity of employees of such contractors and are not
\n\tregistered with the office of the petitioners or the contractors,
\n\tany deposit made by the petitioners is not going to benefit any of
\n\tthe alleged workers.\n<\/p>\n
15(C)
\n\t\tIt is submitted that the amounts paid to various independent
\n\tparties are not wages and that therefore there was no question of
\n\tdeducting any amount therefrom by way of provident fund dues and
\n\ttherefore no question arises of depositing the alleged PF dues
\n\tthereon. Whilst assuming without admitting that they are wages, then
\n\tin that case also, there is no question of depositing the entire
\n\tshare i.e. share of employer and employees, insamuch as at no point
\n\tof time any amount from the order  value paid to the said
\n\tindependent parties has been deducted and retained by the petitioner
\n\tcompany. It is true that the petitioner company had produced Form
\n\tNo.26C containing the names of all such independent parties to whom
\n\tvarious amounts were paid from time to time during the period from
\n\t1.4.2000 to 31.3.2004 along with the affidavits of 30 independent
\n\tparties which were self employed. For ready reference, copy of the
\n\tsaid Form No. 26C containing
\n\tthe names of in all 410 parties is annexed hereto and marked as
\n\tAnnexure C.\n<\/p>\n
15(D)\tIn
\n\torder to show the nature of work performed by each of the said
\n\tparties long with other information, the petitioners also submitted
\n\tvarious details as indicated hereinbelow.\n<\/p>\n
(i)
\n\tStatement containing the names of in all 276 parties along with the
\n\tnature of work performed by them with total amount paid to them i.e.
\n\tRs.7,80,21028\/- 20% of the said amount coming to the tune of
\n\tRs.1,56,04,206.00 on which alleged PF dues to the tune of
\n\tRs.39,96,237.00 have been worked out.\n<\/p>\n
(ii)
\n\tList of 30 parties out of the aforesaid 276 parties referred to in
\n\tStatement A along with their respective affidavits which were filed
\n\tbefore the respondents.\n<\/p>\n
(iii)\tList
\n\tof 45 parties of the aforesaid 276 parties along with their
\n\taffidavits which came to be filed before the Appellate Authority.\n<\/p>\n
(iv)\tStatement
\n\tB indicating the names of 134 parties with the total amount paid to
\n\tthem to the tune of Rs.3,88,04,539\/- during the period in question
\n\twhich were engaged for a longer period.\n<\/p>\n
(v)\tSummary
\n\tas regards the calculation of alleged PF dues while assuming that
\n\tthe amounts i.e. the order value paid to 410 parties and indicated
\n\tin statement A and Statement B are wages @ 29   % and 16%
\n\trespectively.\n<\/p>\n
(vi)\tSummary
\n\tshowing the calculation of alleged PF dues with reference to the
\n\temployer share @ 20 per cent and 16% and 16% of the said order
\n\tvalue.\n<\/p>\n
For
\n\tready reference all the aforesaid details are annexed hereto and
\n\tcollectively marked as Annexure C (colly) If one peruses first
\n\tsummary of calculation referred to above, it becomes abundantly
\n\tclear that if 276 independent parties
\n\tindicated in Statement A are excluded, the total liability comes to
\n\tthe tune of Rs.15,90,055.00 while considering both the shares of
\n\temployer and employees. However, in reality when there was no
\n\tquestion of deducting the employees share, at the best, liability of
\n\tthe petitioner company could be confined to its own share i.e.
\n\temployer’s share which come to the tune of Rs.8,45,008.00 with
\n\treference to the parties indicated in Statement B while assuming
\n\tthat it was only 16% of the total order value which allegedly
\n\trepresented the alleged wages.\n<\/p>\n
15(E)\tPetitioners
\n\tsubmit that there is no justification or reasons given by the
\n\trespondents for raising the amount of alleged wages from 16% to 20%.
\n\tPetitioners submit that though the aforesaid details were produced
\n\tby the petitioners and affidavits were also filed stating inter alia
\n\tthat the parties were not the workers of the petitioners company nor
\n\twere they workers of the alleged contractors and that they are self
\n\temployed,but unfortunately such details have not been considered by
\n\tthe respondents as well as by the appellate authority. It was
\n\tspecifically brought to the notice of the respondents as well as the
\n\tappellate authority that the advocate is giving his professional
\n\tservices whereas other independent parties rendered their services
\n\tas principals and despite this, such glaring facts have not been
\n\tappreciated by the respondents as well as by the appellate authority
\n\tthough voluminous material was placed below them.”\n<\/p>\n
Learned
\n\tSenior Advocate Mr. KB Trivedi has also emphasized in his
\n\tsubmissions that whatever contentions raised in draft amendment were
\n\talso raised before PF Authority in proceedings under section 7A but
\n\tthose contentions have not been considered either by competent
\n\tauthority or by  appellate tribunal under section 7I of PF Act.\n<\/p>\n
I
\n\thave perused affidavit in reply filed by respondent PF Authority. In
\n\taffidavit in reply also, same and similar stand has been taken by
\n\trespondent PF Authority page 101 to 116. Relevant averments made by
\n\trespondent PF Department in para 13 of affidavit in reply which
\n\tbeing answer to amended paragraph 15A and paragraph 14 being answer
\n\tto amended paragraph 15B. Except that, no other affidavit is filed
\n\tby respondent PF Authority before this Court. Therefore, para 13 and
\n\t14 of affidavit in reply filed by respondent PF Department are
\n\tquoted as under:\n<\/p>\n
“13.\tWith
\n\tregard to amended paragraph no. 15 A, I say and submit that for the
\n\tpurpose of EPF & MP Act, 1952, the contractors who have worked
\n\tfor the petitioners and the workers engaged by such contractors
\n\tcertainly be termed as employees of the petitioners within the
\n\tmeaning of section 2(f) of the Act. For the sake of brevity, I crave
\n\tleave to reproduce the section for ready reference as under:\n<\/p>\n
2(f)
\n\t: “employee” means any
\n\tperson who is employed for wages in any kind of work manual or
\n\totherwise, in or in connection with the work of
\n\t(an establishment) and who gets his wages directly or indirectly
\n\tfrom the employer , and (includes any person,-\n<\/p>\n
(i)\t\temployed
\n\tby or through a contractor in or in connection with work of the
\n\testablishment;\n<\/p>\n
(ii)\t\tengaged
\n\tas an apprentice not being an apprentice engaged under the
\n\tApprentices Act, 1961 (52 of 1961) or under the Standing Orders of
\n\tthe establishment;]<\/p>\n
Bare
\n\tperusal of the aforesaid Section, it is abundantly made clear that
\n\tthe employees engaged through the contractor for the work of the
\n\tpetitioners establishment for the purpose of compliance of the Act
\n\tand it is the prime duty of the petitioners establishment being
\n\tprincipal employer to secure compliance of all the employees of the
\n\testablishment including those employed through contractors. More so,
\n\tas per the provisions of section 8A read with paragraph 26, 30,
\n\t36,36B and 38 of the EPF Scheme, 1952,t he principal duty has been
\n\tcast upon the petitioners to secure compliance of such contractor’s
\n\temployee being the principal employer. It is pertinent to note that
\n\tthe petitioners itself has provided list of 410 contractors working
\n\tfor the petitioner establishment with the details of contract,
\n\tcontract amount paid, labour charges involved therein, etc. and has
\n\tfurther admitted to have paid wages @ 16% of the contract amount.
\n\tHowever, Respondent\/Authority after having taken into consideration
\n\ttotality of facts and ratio laid down by the Hon’ble Madras High
\n\tCourt in the case of Regional Director, ESIC v\/s. Sundaram Clayton
\n\treported in 2004 LLR 627, deemed fit to consider wages @ 20 % of the
\n\tcontract amount in absence of non submission of documents like pay
\n\troll, muster roll and wage register in connection with the
\n\tcontractors by the petitioners. Under the circumstances, the order
\n\tdated 30.9.2004 is justified and in consonance with the Act and the
\n\tScheme. It is thus the petition deserves to be dismissed being
\n\tdevoid of any merits.\n<\/p>\n
14.\tWith
\n\tregard to mended paragraph 15B is concerned, I say and submit that
\n\tcontention raised by petitioners therein that deposit made by the
\n\tpetitioners is not going to benefit any of the alleged worker is
\n\tnothing but an effort to take advantage of their own misdeeds. It is
\n\tfurther submitted that on the one hand petitioners have not
\n\tmaintained the list of workers, wages paid and muster roll of the
\n\tcontractor’s employees and\/or having chosen not to produce before
\n\tthe respondent authority during the course of enquiry for the
\n\treasons best known and on the other hand is contending that deposit
\n\tmade by the petitioners I s not going to benefit any of the alleged
\n\tworkers, which is in my respectful submission nothing but an after
\n\tthought with a view to evade PF liability and circumvent their own
\n\tmisdeeds. Under the circumstances, it will be just and proper for
\n\tthis Hon’ble High Court to dismiss the petition with exemplary
\n\tcost.”\n<\/p>\n
In
\n\tlight of this back ground and considering submissions made by both
\n\tlearned advocates and also considering controversy on factual
\n\taspects as has been raised by petitioner establishment and no
\n\tsufficient material and evidence led by petitioner establishment
\n\tbefore competent authority in proceedings initiated under section 7A
\n\tof PF Act, whether section 2(f) of Act defining employee
\n\tis attracted or not, that question is required to be examined which
\n\tis giving definition of employee\u00a0
\n\tbecause stand taken by petitioner establishment is that contractor
\n\twho has been engaged for particular kind of work to be performed by
\n\thim but there was no employee of contractor but he himself was
\n\tcontractor of petitioner and on that basis, contractor himself is to
\n\tbe considered Principal and there is agreement between principal and
\n\tprincipal and question of engaging any employee by contractor does
\n\tnot arise. According to my opinion, these facts are required to be
\n\tre-examined by respondent PF Authority being facts to be determined
\n\tand to consider stand taken by petitioner establishment. For that,
\n\tat the relevant point of time, such material was not produced by
\n\tpetitioner establishment and no oral evidence was led by petitioner
\n\testablishment in support of such contentions. Therefore according to
\n\tmy opinion, decision which has been taken by competent authority
\n\tunder under section 7A of PF Act is required to be quashed and set
\n\taside  so that entire controversy between petitioner establishment
\n\tand PF Department could be decided a fresh and that would meet ends
\n\tof justice between parties.\n<\/p>\n
\tI have perused order passed by competent authority under section 7A
\n\tof PF Act. I have also perused order passed by Appellate Tribunal
\n\tand perusal of aforesaid both orders makes it clear that they have
\n\tnot satisfactorily examined issue\/controversy between parties
\n\tperusal of aforesaid both orders  makes it clear that this
\n\tcontroversy is still remaining between parties and in exercise of
\n\tpowers under Article 226\/227 of Constitution of India, this Court
\n\tcannot re-examine factual aspects and re-appreciated factual aspect
\n\tand this Court also cannot appropriately deal with and decide
\n\tfactual aspects. Therefore, according to my opinion, if order passed
\n\tby competent authority under section 7A of Act dated 30.9.2004 as
\n\twell as order passed by Appellate Tribunal dated 8.9.2010 in appeal
\n\tATA No. 830(5)04 as well as order dated 24.9.2010 passed by PF
\n\tAuthority under section 8F of Act are quashed and set aside without
\n\texpressing any opinion on merits while remanding matter back to
\n\trespondent PF authority to consider aforesaid aspects, this will
\n\tmeet ends of justice between parties.\n<\/p>\n
Accordingly,
\n\tfor reasons recorded above,  order passed by competent authority
\n\tunder section 7A of Act dated 30.9.2004 as well as order passed by
\n\tAppellate Tribunal dated 8.9.2010 in appeal ATA No. 830(5)04 as well
\n\tas order dated 24.9.2010 passed by PF Authority under section 8F of
\n\tAct are quashed and set aside without expressing
\n\tany opinion on merits and matter is remanded back to respondent PF
\n\tAuthority with a direction to respondent competent authority to
\n\tdecide and determine dues of petitioner establishment while
\n\tinitiating proceedings under section 7A of Act a fresh and give
\n\treasonable opportunity of hearing to petitioner establishment and it
\n\tis open for petitioner establishment to produce all relevant and
\n\tmaterial documents\/records and also to lead oral evidence to
\n\testablish contentions\/stand before competent authority and competent
\n\tauthority under section 7A of PF Act is directed to decide afresh
\n\tproceedings under sec. 7A of Act while re-examining entire issue and
\n\tcontroversy on the basis of evidence on record, as early as
\n\tpossible, within period of six months from date of receipt of copy
\n\tof present order and thereafter to communicate decision to
\n\tpetitioner establishment. It is made clear by this Court that while
\n\treconsidering and re-examining matter as per remand order passed by
\n\tthis Court, naturally competent authority would not be influenced by
\n\tearlier order dated 30th
\n\tSeptember, 2004 passed by it as well as order passed by appellate
\n\ttribunal dated 8th
\n\tSeptember, 2010 and will pass appropriate fresh reasoned order on
\n\tbasis of record available before competent authority without being
\n\tinfluenced by aforesaid orders in accordance with law.\n<\/p>\n
In
\n\tpursuance to order dated 24.9.2010, if amount
\n\tis transferred by Branch Manager, State Bank of India, Porbandar in
\n\taccount of PF Department,
\n\tthen, that amount would remain with PF Department subject to final
\n\tout come of remanded proceedings under section 7A of PF Act, meaning
\n\tthereby, it is subject to result of proceedings under sec. 7A of PF
\n\tAct as per this remand order passed by this Court but if Branch
\n\tManager, State Bank of India, Porbandar has not transferred such
\n\tamount in account of respondent PF Department as per order dated
\n\t24.9.2010, then, it is directed to Branch Manager, State Bank of
\n\tIndia, Porbandar to transfer such amount from account of petitioner
\n\testablishment to account of PF Department immediately, within period
\n\tof one week from date of receipt of copy of present order. For that
\n\tpurpose, registry of this Court is directed to send yadi of this
\n\torder to State Bank of India, Porbandar.\n<\/p>\n
In
\n\tview of above observations and directions,this Court has not
\n\texamined any factual aspects and controversy between parties while
\n\tremanding matter and has also not expressed any opinion on merits.
\n\tTherefore, order passed by competent authority under section 7A of
\n\tAct dated 30.9.2004 as well as order passed by Appellate Tribunal
\n\tdated 8.9.2010 in appeal  ATA No. 830(5)04 as well as order dated
\n\t24.9.2010 passed by PF Authority under section 8F of Act are quashed
\n\tand set aside without expressing any opinion on merits while
\n\tremanding matter back to competent authority under PF Act to decide
\n\tafresh proceedings under section 7A of Act after giving reasonable
\n\topportunity of hearing to petitioner and it is open for petitioner
\n\testablishment to lead oral evidence and also to produce documentary
\n\tevidence and material before competent authority in proceedings
\n\tunder sec. 7A of Act and competent authority under PF Act will have
\n\tto decide remanded matter strictly in accordance with law as well as
\n\tconsider documentary and oral evidence which are on record, without
\n\tbeing influenced by earlier orders as referred to above. Rule is
\n\taccordingly made absolute to extent indicated herein above with no
\n\torder as to costs.\n<\/p>\n
\t(H.K.\n<\/p>\n
\tRathod,J.)<\/p>\n
\tVyas<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Paschim vs Recovery on 27 April, 2011 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/14969\/2010 18\/ 18 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 14969 of 2010 ========================================================= PASCHIM GUJARAT VIJ CO.LTD. FORMERLY G.E.B & 1 – Petitioner(s) Versus RECOVERY OFFICER AND ASSISTANT PROVIDENT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-202436","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nPaschim vs Recovery on 27 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/paschim-vs-recovery-on-27-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Paschim vs Recovery on 27 April, 2011 - 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